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NEW EVIDENCE
EXHIBIT L

FEDERAL REGISTER/ VOL. 69, NO. 104/ FRIDAY, MAY 28, 2004 / RULES
AND REGULATIONS - PAGE 30764 - D. STATUTORY REQUIREMENTS FOR
DESIGNATING CLASSES OF EMPLOYEES AS MEMBERS OF THE COHORT

This states in part: “This section also mandates two broad criteria to govern HHS
Decisions, which are made after receiving the advice of the Board. Members ofa class of
employees at a DOE facility or AWE facility may be treated as members of the Cohort
for purposes of the compensation program if HHS “determines that: (1) It is not feasible
to estimate with sufficient accuracy the radiation dose that the class received; and there is
a reasonable likelihood that such radiation dose may have endangered the health of
members of the class.” Also on Page 30765 — II. A. Feasibility of Dose Reconstructions:
Timeliness, Cost, and Availability of Records “As discussed above, EEOICPA requires
HHS to find that it is “not feasible to estimate with sufficient accuracy the radiation dose
that the class received” as a condition for adding the class to the Cohort. The NPRM
proposed the criterion that this condition would be met if NIOSH were not able to
establish “that it has access to sufficient information to estimate the maximum radiation
dose that could have been incurred in plausible circumstances by any member of the
class” (68 FR 11308). On page 30766 the statement is made, “NIOSH and its contractor
for dose reconstructions are now employing more than 300 staff (including more than
100 health physicists) and are working to complete tasks necessary to eliminate the
backlog. These tasks include the completion of “site profiles”, which summarize site-
specific exposure conditions, dosimetry, and other relevant information.” Also on page
30766, “In addition, HHS has added a provision to section 83.13( c )( 1 )(i) of the mule,
as part of the feasibility determination by NIOSH under this section, to require that
NIOSH determine whether it has information regarding monitoring, source, source term,
or process information from the site where the employees worked to serve as the basis for
a dose reconstruction. EEOICPA requires that determinations of probability of causation
for claimants under EEOICPA be based on the radiation dose received by the employee
(or a group of employees performing similar work) at the facility where the employee(s)
worked. 42 U.S.C. 7384n(c)(3)(A). Consequently, for NIOSH to determine that
dose construction is feasible, dose reconstruction must, as a starting point, be based on
some information from the site where the employee worked. This basis requirement does
not limit NIOSH to using only or primarily information from the site where the employee
worked, but it requires the use of some information from the site. HHS has also added a
new 83.13(b) which authorizes the Director of the Office of Compensation Analysis and
Support (OCAS) within NIOSH to determine that records and/or information requested
from DOE, and AWE, or another source to evaluate a petition is not, or will not be,
available on a timely basis. Such a determination will be treated, for the purposes of the
petition evaluation, as equivalent to a finding that the records and/or information


186

requested are not available.” Also on page 30766, “The ability to estimate the maximum
radiation dose received by members of a class is technically a critical distinction between
circumstances in which it is feasible to estimate radiation doses through dose
reconstruction and those in which it is not feasible to do so.” Also on page 30767,
“Furthermore, HHS has revised section 83.13 (c) (1 ) of the rule to state explicitly that
NIOSH will make determinations of feasibility based on whether or not NIOSH is able to
reconstruct doses for every type of cancer for which radiation doses are reconstructed.”

Regarding the above paragraph, I see no statement in the Dose Reconstruction Report in
my claim where NIOSH states that information from the site where my husband worked
was used. The “Dose Reconstruction Overview” on Page 4 of 18 of the Dose
Reconstruction Report completed 3/13/2004, states “No dosimetry or bioassay records
for related to Mathieson Chemical’s work for the Atomic Energy
Commission (AEC, one of the predecessor agencies of the present Department of
Energy) could be found.” . Under “Information Used”, also on page 4 of 18, I quote
“The primary data source utilized for this dose reconstruction was the “Technical
Information Bulletin: Technical Basis for Estimating the Maximum Plausible Dose to
Workers at Atomic Weapons Employer Facilities” prepared for the EEOICPA project. It
presents the evaluation of information regarding the uranium processing work performed
by various atomic weapons employer (AWE) facilities for the AEC. Conservative air
concentrations and inhalation times were assumed to estimate doses to these workers*
The types of cancer and the dates of diagnosis were obtained from the medical records
and/or death certificate submitted by the claimant.” Under “Dose Estimate — Radiation
Type, Energy, and Exposure Conditions” the statement is made “From the records, it was
not possible to state whether he was in a position to be exposed to radioactive material or
not.”. No information for the period of 1951 - 1953 was furnished from the Mathieson
Chemical worksite. No records were kept.

Attachment:
(1) Federal Register / Vol. 69, No. 104 / Friday, May 28, 2004 / Rules and s
Regulations — Page 30764 ~ D.


30764 Federal Register/Vol.

/0-

69, No. 104/Friday, May 28, 2004/Rules and Regulations

DEPARTMENT OF HEALTH AND
HUMAN SERVICES

42 CFR Part 83
RIN 0920-AAO7

Procedures for Designating Classes of
Employees as Members af the Special
Exposure Cohort Under the Energy
Employees Occupational Iliness.
Compensation Program Act of 2000;
Final Rule

AGENCY: Department of Health and
Human Services.
ACTION: Final rule.

SUMMARY: This document describes how
the Department of Health and Human
Services (“HHS”) will consider
designating classes of employees to be
added to the Special Exposure Cohort
under the Energy Employees
Occupational Illness Compensation
Program Act of 2000 (“EEOICPA”’).
Under EEOICPA, and Executive Order
13179, the Secretary of HHS is
authorized to make such designations,
which take effect 180 days after
Congress is notified unless Congress
provides otherwise. An individual
member (or the eligible survivors of a
member) of a class of employees added
to tbe Special Exposure Cohort would
be entitled to compensation if the
Department of Labor (“DOL”) finds that
employce incurred a specified cancer
and the claim meets other requirements
established under EEOICPA.

DATES: [iffective Date: This final rule is
effective May 28, 2004.

Compliance Date: Affected parties are
required to comply with the information
collection requirements in § 82.9
effective May 28, 2004.

FOR FURTHER INFORMATION CONTACT:
Larry Elliott, Director, Office of
Compensation Analysis and Support,
National Institute for Occupational
Safety and Health, 4676 Columbia
Parkway, MS~C-46, Cincinnati, OH
45226, Telephone 513-533-6800 (this is
not a toll-free number). Information
Tequests can also be submitted by e-mail
to OCAS@CDC.GOV.

SUPPLEMENTARY INFORMATION:

I. Background
A. Statutory Authority

‘The Energy Employces Occupational
{ness Compensation Program Act
(ZEOICPA), 42 U.S.C. 7384-7385,
established a compensation program to
provide a lump sum payment of
$150,000 and prospective medical
benefits as compensation to covered
employees suffering from designated
illnesses incurred as a rosult of their

exposure to radiation, beryllium, or
silica while in the performance of duty
for the Department of Energy (“DOE”)
and certain of its vendors, contractors
and subcontractors. This legislation also
provided for lump sum payments for
certain survivors of these covered
employees.

EEOICPA instructed the President to
designate one or more Federal Agencies
Lo carry out the compensation program.
Pursuant to this statutory provision, on
December 7, 2000, the President issued
Executive Order 13179 (‘Providing
Compensation to America’s Nuclear
Weapons Workers”), whicb assigned
primary responsibility for administering
the compensation program to the
Department of Lahor (“DOL”). 65 FR
77487 (December 11, 2000). DOL
published a final rule governing DOL’s
administration of EEOICPA on
December 26, 2002 {67 FR 78874).

Executive Order 13179 directed HHS
to perform several technical and
policymaking roles in support of the
DOL program:

(1) HHS was to develop procedures
for considoring petitions by classes of
employees at DOE and Atomic Weapons
Employer (“AWE”) facilities to he
added to the Special Exposure Cohort
established under EEOICPA. These
procedures are the subject of this rule.
HHS is also to apply these procedures
in response to such petitions. Covered
employees included in the Special
Exposure Cohort who have a specified
cancer, and eligible survivors of these
employees, qualify for compensation
under EEOICPA.

(2) HHS was to develop guidelines, by
regulation, to he used by DOL to assess
the likelibood that an employee with
cancer developed that cancer as a result
of exposure to radiation in performing
his or her duty at a DOE facility or AWE
facility. HHS published a final rule
establishing these “Probability of
Causation” guidelines on May 2, 2002
(67 FR 22296) under 42 CFR Part 81.

(3) HHS was also to develop methods,
by regulation, to estimate radiation
doses (“dose reconstruction”) for certain
individuals with cancer applying for
benefits under the DOL program. HHS
published a final rule promulgating
these methods under 42 CFR Part 82 on
May 2, 2002 (67 FR 22314). HHS is
applying these methods to conduct the
program of dose reconstruction required
by EEOICPA. .

(4) Finally, HHS is to provide the
Advisory Board on Radiation and
Worker Health (“the Board") with
administrative and other necessary
support services. The Board, a federal
advisory commiltec whose members are
appointed by the President, is advising

HHS in implementing its roles under
EEOICPA described here.

42 U.S.C. 7384p requires HHS to
implement its responsibilities with the
assistance of the National Institute for
Occupational Safety and Health
(NIOSH), an Institute of the Centers for
Disease Control and Prevention, HHS.

B. What Is the Special Exposure Cohort?

The Special Exposure Cobort (“‘the
Cohort") is a category of employees
defined under 42 U.S.C. 73843(14). In
this definition, Congress specified
classes of employees to comprise the
Cobort initially, including DOE
employees, DOE contractor or
subcontractor employees, who were (1)
employed an aggregate of at least 250
work days before February 1, 1992 ata
gaseous diffusion plant in Paducah,
Kentucky, Portsmouth, Ohio, or Oak
Ridge, Tennessee, and who were
monitored using dosimetry badges or
worked in a job that had exposures
comparable to a job that is or was
monitored using dosimetry badges; or
(2) employees of DOE or DOE
contractors or subcontractors employed
before January 1, 1974 on Amchitka
Island, Alaska and exposed to ionizing
radiation in the performance of duty
related to the Long Shol, Milrow, or
Cannikin underground nuclear tests. As
provided in 42 U.S.C. 73841(9)(A),
employees included in the Cohort who
incur a specified cancer? qualify for
compensation (see DOL regulations 20
CFR part 30 for details). Cancer claims
submitted by these employees or their
survivors do not require DOL to
evaluate the probability that the cancer
was caused by radiation doses incurred
during the performance of duty for
nuclear weapons programs of DOE, as is
required for other cancer claims covered
hy EEOICPA.

C. Purpose of the Rule

EEOICPA authorized the President to
designate additional classes of
employees to be included in the Cohort,
while providing Congress with the
opportunity to review these de
and expedite or reverse them.
previously, the President has delegated
his anthority in this matter to the
Secretary of HHS. The purpose of this
rule is to establish procedures by which
the Secretary of HHS will determine
whether to add to the Cohort new
classes of employees from DOE and
AWE facilities. The procedures are

* Specified cancers are a limited group of cancers
thal EBOICPA specifies are compensable under
provisions governing compensation for members of
the Cohon'. Although the list of specified cancers
is determined by statute, the list can also be found
iu this rule under § 83.5.